Burgess Thomson Lawyers

Disputing Wills

Wills & Estate Planning

Newcastle's specialist Will Dispute Lawyers

Will disputes can arise for a multitude of reasons and can be severely damaging to your relationships with your family and friends. Wills are usually contested on the basis that they are not an accurate reflection of the testator’s wishes. The testator is the person who has made the Will, and appointed one or more executors who carry out their wishes, which involves transferring assets named in the Will to one or more persons named as beneficiaries.  

The most common instances in which a Will may be disputed is where the testator lacked testamentary capacity, was acting under undue influence or duress, or was the victim of fraud. Another reason why a Will can be contested if it is grossly unfair or unconscionable. Challenging a Will is no longer limited to only spouses, children, friends or relatives who believe they have not been sufficiently provided for, but also includes, de facto partners, former spouses, grandchildren or other dependents. If you believe that a friend, partner, or relative has been impacted by any of these factors and the Will is not a true reflection of their wishes, the team at Burgess Thomson can assist you in challenging the Will.


Enter your details for an obligation free quote.

We’ll work hard to get you the best outcomes. Speak with our Wills & Estate Lawyers to discuss your options.


When does someone lack testamentary capacity?

A claim of this type asserts that the person making the Will lacked the necessary mental capacity to understand the ramifications of making the Will or that they were not in control of their faculties. A person can only make a Will if they had the understanding and ability to comprehend the implications of making a Will.

In NSW, a testator is presumed to have testamentary capacity, so a challenge must arise on the basis of sufficient evidence. The general test applied by the courts involves the following questions in relation to the person’s capacity at the time of making the Will:

  • Did the testator understand the effect of making a Will?
  • Could the testator remember the assets included in their estate to be distributed under the Will?
  • Did the testator understand that peopled are entitled to provisions from the estate under the Will?
  • Did the testator suffer from any disorder inhibiting their ability to make rational decisions under the Will?
When will a person be acting under duress?

Duress is a type of external pressure which may be imposed on the testator when making their Will. Generally speaking, it involves a threat of some type of action which is used to coerce a testator into doing something against their wishes, for example executing a Will in favour of the person threatening them. A person who is acting under duress will not be held responsible for the actions performed. Therefore, a Will made under duress would be invalid.

In NSW, there are three elements which must be established to prove that a person was acting under duress:

  • A threat of death or serious injury was made to the testator or a member of his/her family.
  • The threat(s) being of such a kind that a person:
    • of ordinary firmness and strength of will;
    • of the same maturity and sex of the testator; and
    • in the same position as the testator,
    • would have succumbed to the threat and executed the Will against their own wishes.
When will a person have been unduly influenced in the making of their Will?

Undue influence involves the coercion of the testator into making the Will in circumstances where no threat is made. Usually, this will involve people taking advantage of an older relative so that the Will is not a true expression of the testator’s wishes. There are two forms of undue influence which may arise:

Express Undue Influence:

Express undue influence occurs when the execution of a Will results from undue pressure exerted upon the testator to the extent that their free and independent judgement has not been exercised.

Presumed Undue Influence:

Undue influence can also be presumed based on the relationship between the testator and the party exerting influence over them. Although there is no exhaustive list of parties which fall within this presumption, examples of parties that would enliven the presumption include parents, children, guardians, trustees and solicitors.

For parties outside of this list it must be shown that the relationship is such that the person is in a position to exercise dominion over the testator by reason of trust and confidence.

Under what circumstances will a Will be fraudulent?

Fraud can occur in several different ways, but common examples are where a person poses as someone they are not and executes the Will of someone else in favour of themselves, or where a testator is tricked into signing the Will.

Where someone poses as someone they are not in the execution of a Will, for someone to challenge the Will they must provide evidence that the person who executed the Will is not the testator named in the Will. This may involve verifying identification documents, cross-referencing signatures or other means to prove that the Will is fraudulent.

A person may also be tricked into signing a Will in different circumstances. For example, a Will could be prepared on behalf of a testator who is then lied to about the effect of his/her will, or told that the document was not a Will, but rather a different document such as an enduring guardianship.

What is unconscionable conduct?

Unconscionable conduct occurs when a person acts unconscientiously by exploiting a special disability or disadvantage of a testator to their own benefit. Generally, to establish this there are two key considerations:

  • The testator suffers from a condition/disability that makes them unable to make proper judgement; and
  • The other party ought to, or is aware of this condition/disability, and takes unfair advantage of it to their benefit.

A particular example of this relevant to older persons is where they do not have the mental faculties to appreciate the nature of the Will they are executing, and another person takes advantage of this condition to give the whole of the estate to themselves.

Visit Law Society of NSW  website for more frequently asked questions on wills and estates. 

Arrange a consultation with experienced Lawyers in Newcastle


Please fill in the form below and we will be in touch shortly.